Home ROBERT E. WEAVER'S CASE.

4 Mass. App. Ct. 820

June 24, 1976

A single issue is raised on appeal from a judgment of the Superior Court denying an employee's claim for permanent and total disability under G. L. c. 152, Section 34A. In light of the disclosure to the Superior Court judge that a supplemental medical report from the impartial physician had been obtained in violation of the rules of the Industrial Accident Board and that the reviewing board had passed upon it without according the insurer an opportunity for rebuttal, the judge was warranted in recommitting the case to the board to give the insurer an opportunity to rebut the report so that a decision might be made upon a complete record. The Superior Court has broad power to recommit a case to the board where justice so requires. DaLomba's Case, 352 Mass. 598 , 602 (1967). Sabbagh's Case, 346 Mass. 504 , 507 (1963). Johnson's Case, 242 Mass. 489 , 495-496 (1922). Brown's Case, 228 Mass. 31 , 38 (1917). Locke, Workmen's Compensation, Section 585 (1968). It is not argued that there was error in the ultimate decision made by the court on the record returned by the board following remand.

Judgment affirmed.

Home WILLIAM HOLMGREN vs. DAVID LALIBERTE.

4 Mass. App. Ct. 820

June 24, 1976

1. There was evidence which warranted an inference that the accident was caused by the defendant's negligence, for the reasons stated in the factually similar case of Olofson v. Kilgallon, 362 Mass. 803 , 805-806 (1973). See also Jennings v. Bragdon, 289 Mass. 595 , 597 (1935), and cases cited; Warren v. Howe, 332 Mass. 213 (1955); Fletcher v. Dockery, 1 Mass. App. Ct. 865 (1974). 2. From evidence of the onset of the plaintiff's typical whiplash symptoms hours after the time that the rear end of his automobile was struck with considerable force by the defendant's truck, the continuation of those symptoms without substantial interruption through at least August of the following year, and the statements in the hospital records, the jury would have been warranted in finding that the plaintiff's orthopedic problems were causally related to the collision without further expert medical testimony. Compare McAuliffe v. Metcalf, 289 Mass. 67 , 69 (1935); Comeau v. Beck, 319 Mass. 17 , 19-20 (1946); Votour v. Medford, 335 Mass. 403 , 406 (1957). 3. There was evidence that, although the plaintiff was simultaneously treated for pre-existing pulmonary conditions during his first hospitalization of eleven days, the hospitalization itself was for the purpose of treating his orthopedic problems. There was evidence that the second hospitalization of thirteen days, the consultations by orthopedic specialists during both hospitalizations and by a neurologist during the

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first hospitalization, and at least nine of the plaintiff's visits to his attending physician's office during the period April 27, 1972, through August 26, 1974, were necessitated by the plaintiff's orthopedic problems. Although the plaintiff's attorney failed to make offers of proof of the charges for those medical services, an inference is inescapable that the charges exceeded the five hundred dollar threshold in G. L. c. 231, Section 6D. In addition, it appears from an excluded answer that the charge for the first hospitalization alone was at least seven hundred dollars. The purpose of an offer of proof is to show that the proponent has been prejudiced by the exclusion of the offered testimony. Warren v. Spencer Water Co. 143 Mass. 155 , 164 (1887). Smethurst v. Barton Square Church, 148 Mass. 261 , 267 (1889). Cook v. Enterprise Transp. Co. 197 Mass. 7 , 10 (1907). Nicholas v. Lewis Furniture Co. 292 Mass. 500 , 504 (1935). Ford v. Worcester, 339 Mass. 657 , 658 (1959). Mac-Rich Realty Constr. Inc. v. Planning Bd. of Southborough, ante, 79, 85-86, fn. 9 (1976). That purpose has been served on the record in this case.

Judgment reversed.

Case to stand for a new trial.